Thoughts from the interface of science, religion, law and culture

After spending several years touring the country as a stand up comedian, Ed Brayton tired of explaining his jokes to small groups of dazed illiterates and turned to writing as the most common outlet for the voices in his head. He has appeared on the Rachel Maddow Show and the Thom Hartmann Show, and is almost certain that he is the only person ever to make fun of Chuck Norris on C-SPAN.

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Florida Republicans Want to Speed Up Executions

The Florida legislature has passed a package of criminal justice reforms that include provisions to speed up the execution of those on death row. Gov. Rick Scott is almost certain to sign the bill. And one Republican callously declared that it’s “not about guilt or innocence.”

The Florida Senate sent Governor Rick Scott a package of capital-punishment reforms on Monday designed to prevent condemned killers from spending decades on Death Row, despite warnings that speeding up the legal appeals process could lead to innocent prisoners being executed…

“Is swift justice fair justice?” asked Democratic party Senator Arthenia Joyner, a Tampa attorney who voted against the bill. “We have seen cases where, years later, convicted people were exonerated,” she said.

“I don’t see the reason for the swiftness, especially with DNA evidence that can exonerate,” said Senator Maria Sachs, who is also an attorney and a Democrat.

But Republican Senator Rob Bradley said, “this is not about guilt or innocence, it’s about timely justice.” Frivolous appeals designed only for delay are not fair to victims and their families, he said.

It’s not about guilt or innocence? Since the Supreme Court reinstated the death penalty in the early 70s, Florida has executed 74 people; they’ve also seen 24 people on death row exonerated, proven to be not guilty. That’s a 25% failure rate, for crying out loud. As Mark Elliott, director of Floridians for Alternatives to the Death Penalty (FADP), said late last year, “It is both tragic and ironic that the state that has sent the highest number of wrongfully convicted people to Death Row is now condemning the most people to death.” And now trying to do it even faster. Appalling.

Not necessarily. The 24 people who were exonerated were presumably those for which there remained the possibility for reasonable doubt, so they aren’t exactly a random draw from the population on death row and the true fraction of innocent people sentenced to die could actually be somewhat lower than 25%. But, yes, it is far too high and it is very likely than the state has killed several innocent people.
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More generally, I have a problem with Bradley’s implications that executions are somehow “fair to victims and their families”. If murderers are caught and imprisoned, and in a position where they will not harm others, how is their being killed fair to anyone? Bradley isn’t advocating justice. He’s advocating vengeance – and doesn’t appear to care where if that vengeance is directed at entirely the wrong person.

More generally, I have a problem with Bradley’s implications that executions are somehow “fair to victims and their families”. If murderers are caught and imprisoned, and in a position where they will not harm others, how is their being killed fair to anyone? Bradley isn’t advocating justice. He’s advocating vengeance – and doesn’t appear to care where if that vengeance is directed at entirely the wrong person.

And he certainly doesn’t care about the innocent person killed by the state, or this person’s family.

Your second paragraph is exactly what I wanted to say. I get the sense of outrage people feel when violent crimes are committed, but more and more it seems that victims rights are a little too much about the right to vengeance.

If I hadn’t heard this sentiment expressed before, I’d be shocked at the sheer audacity of it. “Justice” where guilt or innocence isn’t a central concern? Self-contradiction, and in the case of the death penalty, effectively endorsing murder by the state, so long as they put up the charade of a trial. Having misplaced confidence in the criminal justice system is bad enough, but these people don’t even pay lip service for it. It’s almost like they treat the system like an assembly line, where hammering out units matters more than whether or not those units actually function for their intended purpose.

Justice Scalia said the same thing about eight years ago. I wish I could remember that case.”

He said something like that in his article “God’s Justice and Ours” about 11 years ago in the Catholic magazine, “First Things.” There he quoted from “A Man for All Seasons”, and said that only unbelievers who didn’t believe in an afterlife would be bothered by the execution of the innocent.

Folks, I hate to say this but Bradley is technically correct. The only issue in a criminal trial is whether the state can prove its case beyond a reasonable doubt. Nothing more and nothing less. As famed criminal defense attorney F. Lee Bailey said in one of his books, when a potential client tells him that he is innocent of a crime, his response is that that’s fine but unfortunately factual innocence is not a defense in a trial.

Justice Scalia said the same thing about eight years ago. I wish I could remember that case.

The case you are thinking of is probably Herrera v Colins 506 U.S. 390 (1992) or In re Troy Anthony Davis 556 U.S. ____ (2009). Scalia voiced similar opinions in both. The more concise quote comes from Davis.

This Court has never held that the Constitution forbids the execution of a convicted de
fendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.

So killing an innocent person while the real murderer goes free is somehow better for the victims family?

i don’t think this is a difficult concept…..

To steal the air quotes above, “actual innocence” is something that is subject to a lot of dispute. If someone was convicted, at the very minimum, police and prosecutors believed he was the guilty party. As often as not the victim’s family believes they’re the guilty party as well. Unlike in CSI, the only cases where DNA results are often really conclusive are rape cases, otherwise the results are circumstantial at best.

In a criminal case I think circumstantial evidence can be a textbook “reasonable doubt,” but the system is very strongly oriented to letting the jury decide what reasonable doubt is and isn’t, and not later overturning that. Technical definitions also don’t keep people from forming a strong opinion as to whether someone is guilty.

Just for example, the west memphis 3. In my new job I work on an almost daily basis with Damien Echols original public defender. I’ve appeared multiple times before the now Judge, who was the prosecutor in that case. You ask anyone in this areas, they’ll have opinions on it, and many people hold the opinion that the kids were guilty.

Not necessarily. The 24 people who were exonerated were presumably those for which there remained the possibility for reasonable doubt, so they aren’t exactly a random draw from the population on death row and the true fraction of innocent people sentenced to die could actually be somewhat lower than 25%. But, yes, it is far too high and it is very likely than the state has killed several innocent people.

This sort of mis-describes the process.

Some states have innocence commissions. These commissions have an express statutory mandate to review “new evidence” in criminal cases. If they find that the new evidence clearly establishes innocence, they refer the case to the State Supreme Court, who can vote (and they usually must do so unanimously) to overturn the original conviction.

However, outside of an innocence commission type body, most states simply don’t have any body to overturn convictions for factual reasons. Rather, a convicted person has to come up with a legal failing in their trial. That is, some evidence was admitted which should have been excluded or vice versa, or the judge instructed the jury wrong, or you had incompetent defense counsel, or something else was wrong. This can be done on a direct appeal, or by filing federal habeas petitions saying that “X happened and this violated my constitutional rights, therefore I should receive a new trial.”

Neither of these avenues provide a genuine opportunity to point to actual evidence and say “see, this shows I’m innocent!” if an innocence commission doesn’t exist, this is left to a governor or president to grant a pardon.

slc1 @#16 (quoting F. Lee Bailey): “..that’s fine but unfortunately factual innocence is not a defense in a trial.”

Hmm… That is very like a pronouncement of the RCC’s Congregation for the Doctrine of the Faith in 1975 (just before Ratzinger became head of that office, as I recall), condemning masturbation even though psychologists were saying that it was normal and healthy: “[F]acts do not constitute a criterion for judging the moral value of human acts”, since such facts are “to be linked with the loss of a sense of God”. “(Link)”

Is there a historical connection here? If what Bailey was describing was/is truly mainstream (and I know no reason to think otherwise), I wonder if both sentiments, the religiously-motivated divorce of facts from both sexual morality and from justice, might have the same roots? Is such blithe dismissal of the importance of factual evidence part of Clarence Thomas’ “natural law” legal theory? (Any students of the history of legal meta-ethics out there?)

My understanding is that one of the earliest lessons in law school is that we have a system of laws, not a system of justice. It is to be hoped that the law leads to justice, but law is the tool we have.

Under the US system of “justice”, it is the job of the prosecutor to prove the guilt of the accused beyond a reasonable doubt. Technically, the defense is not required to prove anything or put on a rebuttal case. If the defendant, through his defense lawyer, can establish a reasonable doubt via cross examination of the prosecutor’s witnesses, the jury is instructed to bring back a verdict of innocent (really a Scotch verdict, not proven). Contrary to the proclamations made in the O. J. Simpson trial by both Johnny Cochran and Marcia Clark,, a trial is not a search for the truth. In addition, the defendant is not required to testify nor is the prosecutor permitted to comment on a defendant’s opting not to testify. In fact, there is a jury instruction to the effect that the jury is not to consider the defendant’s opting not to testify as an indication of guilt.

DC Sessions @26: My understanding is that one of the earliest lessons in law school is that we have a system of laws, not a system of justice. It is to be hoped that the law leads to justice, but law is the tool we have.

But if the system of laws leads to an innocent person being imprisoned or executed, then that system is not just. Moreover, if we consider for even a moment that an unjust system of laws which can lead to the death of an innocent party is in any way okay or desirable, then we have become monsters, since the law has become a murderer of the innocent and we have become accessories to murder.

Hoping the laws lead to justice shouldn’t be a feature. Having laws that are based on and lead to justice should be the expected norm. If that’s really the first thing that’s taught in law school then it’s no wonder why we’re fucked: our lawyers and judges have lost track of the entire purpose of having a law in the first place.

But if the system of laws leads to an innocent person being imprisoned or executed, then that system is not just. Moreover, if we consider for even a moment that an unjust system of laws which can lead to the death of an innocent party is in any way okay or desirable, then we have become monsters, since the law has become a murderer of the innocent and we have become accessories to murder.

This is all nice and idealistic, but jury trials are bit like democracy. They’re the worst way to do things except for all the other ways of trying it.

If you sit down and think about it, we need a system for determining whether someone accused of a crime is actually guilty or innocent, that is (1) reasonably fair (2) reasonably accurate, (3) somewhat final, and (4) operates with at least a modicum of efficiency.

At the core of a jury trial is that between 6 and 12 impartial individuals from the community (your “peers” so to speak) get to hear evidence related to your guilt. The evidence they hear is heavily restricted based on rules to ensure that the proceedings are fair. Then they’re instructed by the judge on what should guide theri decision.

The system then imposes a measure of finality by giving a great deal of weight to the decision made by those people and not allowing judges to simply overturn it because they believe otherwise, nonethless we allow multiple ways for people to ask that the verdict be overturned, or that the rules were broken.

I understand the “we might be wrong” argument as solely against the death penalty, and I think that’s a fairly compelling argument. But it’s really tough to design a system of criminal justice that is going to be 100% accurate.

Yes, I understand the distinction (law is the tool we have; justice is just a hope), and that the justice system can’t consider “actual innocence” unless the law first defines what that might mean, and how and who is to consider it. But some (like Florida State Senator Rob Bradley) who are in a position to help clarify the role of “facts” in determining “innocence” under the law, seem to be content to leave the role of factual evidence in such claims, as Scalia says, “unresolved”. It is the ethical tension between the desire for a speedy resolution versus the patience required for the construction of reliable knowledge that I see as a critical human issue here, one that may be in danger of being dismissed in favor of the pious certainties of an afterlife. But what do I know; as a scientist, I don’t believe in facts anyway — just probabilities that improve only after adding more Bayesian cycles. Facts require time.

My point was that the people on death row who were exonerated were those for which reasonable legal grounds for overturning their convictions was found. That’s not a random sample of the death row population, and you’re quite right that it also doesn’t correspond to those people who are actually innocent. But that’s just another part of the same reason why capital punishment is not a good idea: the rate of innocent people being killed is too high.
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I would also say that even killing people who are actually guilty of murder is not just, given that they have already been identified and prevented from further harming others.

Unfortunately, I, too, live in Texas, a state which executed a man despite growing evidence that not only did he not commit the crime but that no crime had been committed. Fellow conservatives lauded Rick Perry for having the “guts” to execute a man who was probably innocent. And the wingnuts in Florida envy that.

BTW, it’s strange that all these fiscal conservatives support the death penalty, considering how it’s actually MORE expensive to execute a person than imprison them for life. Then again, the main expense is the appeals process, which the Floridians want to do away with. For freedom.

But some (like Florida State Senator Rob Bradley) who are in a position to help clarify the role of “facts” in determining “innocence” under the law, seem to be content to leave the role of factual evidence in such claims, as Scalia says, “unresolved”.

Ben P @30: I understand the “we might be wrong” argument as solely against the death penalty, and I think that’s a fairly compelling argument. But it’s really tough to design a system of criminal justice that is going to be 100% accurate.

Which is why I argue that if we’re not going to care about justice while executing people then we’re doing it really, really wrong. I get that we live in reality and can’t be idealistic about everything if we want to get things accomplished. If we’re aware of the fact that the system isn’t perfect and that the pieces can lead to false convictions then we should never make irreversible decisions.

Anyone who wants to argue, as the Florida lawmaker above did, that guilt or innocence doesn’t actually matter because we’re looking for justice either doesn’t know what justice means or has confused that first-year law lesson that laws =! justice with something completely and totally different. Anyone who puts process over purpose in a case such as this is doing it wrong. Since the state-sanctioned murder of an innocent could be on the line, that makes the people doing it monsters. There’s no way around it.

The simple historical reality is that laws were often not about justice. They were usually about maintaining public order and keeping the classes in their places (note the Code of Hammurabi, where a poor person attacking the wealthy got much greater punishment than a wealthy person attacking a poor person). We like to believe that we’ve morally surpassed Bronze Age Babylon. But if the purpose of our laws is no different, then we really haven’t. Since we put all the things in place about giving the accused a fair shake in court then it implies that we think there should be a justice component to the laws, which means that getting a conviction and enforcing the laws for the sake of enforcing the laws shouldn’t be the first thing on our minds.

“Do you want the job done right, or do you want it done fast?” ~ Homer Simpson

D. C. Sessions“Should I be upset that one of the Nine people most in charge of what passes for a ‘Justice system’ in this country found it amusing to cite Arnaud-Amaury as a guide to policy?”
“And justice for all” is mistranslated from Amaury’s original Latin. True story.

fmitchell“BTW, it’s strange that all these fiscal conservatives support the death penalty, considering how it’s actually MORE expensive to execute a person than imprison them for life.”
No price is too high for vengeance.

Apropos of this discussion, there is a case in Mississippi in which the FBI says that their tests of forensic evidence that, at least in part, resulted in a conviction and death sentence for a defendant was flawed and the Justice Department is proposing to retest the samples using advanced DNA technology that was not available at the time of trial. Naturally, the prosecutor in Mississippi is resisting the retesting, and was supported by a 5 to 4 decision of the state supreme court rejecting the convicted defendant’s request. The convicted defendant is scheduled to be executed in 3 days.